STATE OF GEORGIA, PLAINTIFF V. STATE OF SOUTH CAROLINA
No. 74, Original
In The Supreme Court Of The United States
October Term, 1988
On the Report of the Special Master
Memorandum For The United States As Amicus Curiae
The "Second and Final Report" (Report) of Special Master Walter E.
Hoffman in this case, filed on March 31, 1989, assumes, unnecessarily
and incorrectly in our view, that the United States has utilized
so-called "straight baselines" in constructing the coast line at the
mouth of the Savannah River (Report at 12-14). The use of straight
baselines is authorized by Article 4 of the Convention on the
Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 4, 15
U.S.T. 1606, T.I.A.S. No. 5639 (the Convention), which supplies the
principles for locating the coast line of the United States. /1/
However, Article 4 is an optional provision of the Convention, to be
utilized in limited geographic circumstances. The use of straight
baselines to locate the coast line of the United States is contrary to
a longstanding and consistent position of the United States,
repeatedly recognized and upheld by this Court. The United States
brings the Special Master's erroneous assumption to the Court's
attention in order to suggest that the Court indicate in its opinion
in this case that it does not adopt that assumption.
1. The most recent phase of this litigation concerns the
construction of an offshore lateral boundary dividing the
jurisdictions of Georgia and South Carolina from their common boundary
at the mouth of the Savannah River to the three-mile limit. Since
such boundaries often depend on the location of the coast line, the
federal government followed the litigation to assure that neither
party took a position inconsistent with that of the United States as
to the location of either the coast line or the three-mile limit.
Neither did; instead, both parties adopted the federal coast line for
purposes of their theories of the case. Report at 4-5, 12. Moreover,
the parties specifically stipulated that federal interests would not
be affected by any decision in this case. Report, Stipulation
Appendix. Accordingly, the United States did not participate in the
proceedings before the Special Master, and continues to take no
position in this Court on the boundary dispute between the parties.
The coast line in question is that segment between Tybee Island and
Hilton Head Island. It is a straight line delimiting the inland
waters of Tybee Roads. The Special Master assumes in his discussion
of the line that it is an Article 4 straight baseline (Report at
12-14), although that assumption is not necessary to his reasoning or
conclusions. In fact, the line (which is correctly located by the
Special Master) is a traditional bay closing line drawn pursuant to
Article 7 of the Convention. /2/
The Special Master's discussion of straight baselines in this case
is apparently the result of ambiguous testimony. We understand that
two witnesses referred to the Tybee Island-Hilton Head closing line as
a "straight baseline". It is so only in the sense that bay closing
lines drawn pursuant to Article 7 of the Convention are "straight",
not because it was constructed pursuant to Article 4. /3/
2. The Special Master's use of the straight baseline analysis is,
in any event, clearly at odds with the position heretofore taken by
the Court and its Special Masters in other cases.
This Court has been both consistent and clear in recognizing that
the Executive Branch does not employ Article 4 of the Convention in
the construction of the coast line of the United States, and has
repeatedly upheld that position. In the California tidelands case,
the Court observed that Article 4 was optional and could not be
imposed on the federal government by the States. United States v.
California, 381 U.S. 139, 168 (1965). In the related Louisiana case,
although it acknowledged that the straight baseline method is well
suited to that State's geography, the Court refused to impose its use
on the Executive Branch, one of "the branches of Government
responsible for the formulation and implementation of foreign policy".
United States v. Louisiana (Louisiana Boundary Case), 394 U.S. 11, 73
(1969).
This Court's Special Masters have repeatedly reached the same
conclusion. Louisiana was given an opportunity to prove the use of
straight baselines and could not. Report of the Special Master at
5-13, United States v. Louisiana, No. 9, Orig. (July 31, 1974).
Florida previously had made similar arguments. Judge Maris, sitting
as Special Master, concluded that "(t)he evidence in this case
conclusively establishes that the United States has not adopted the
straight baseline method with respect to the determination of the
coastline of the State of Florida." Report of the Special Master at
49, United States v. Florida, No. 52, Orig. (Jan. 18, 1974). Judge
Hoffman himself, sitting as Special Master in United States v. Maine
(Massachusetts Boundary Case), recognized that "(e)ven though the
straight baseline system might be appropriate to some parts of the
coasts of the United States, the Federal Government has not elected to
apply the system to delineate the baseline of the United States.
Moreover, the Supreme Court has held that the decision to use Article
4 'rests with the Federal Government, not with the individual States'
(citing California and Louisiana). Accordingly, the straight baseline
system of Article 4 is inapplicable to this proceeding." Report of the
Special Master at 6 (Jan. 13, 1984). The same conclusion was reached
most recently in that portion of No. 9, Original which dealt with
Mississippi Sound. United States v. Louisiana (Alabama and
Mississippi Boundary Case), 470 U.S. 93, 99 (1985); Report of the
Special Master at 7.
In short, in this case the Special Master has -- perhaps
inadvertently -- suggested that the United States employs a baseline
system which in fact it has avoided adopting for many years. The
discussion of this point does not appear to be essential either to the
Master's ultimate decision or to the rationale supporting it.
Nevertheless, since the federal government has, with this Court's
approval, consistently refused to adopt the optional methods described
in Article 4 of the Convention, and has had to defend against
assertions by the coastal states that they have been used (see, for
example, Alaska's pending contentions in No. 84, Orig.), we submit
that the Master's error should not go uncorrected. We therefore
suggest that the Court indicate in its forthcoming opinion that it
does not adopt that portion of the Master's discussion.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
JUNE 1989
/1/ Article 4 provides in pertinent part:
1. In localities where the coastline is deeply indented and
cut into, or if there is a fringe of islands along the coast in
its immediate vicinity, the method of straight baselines joining
appropriate points may be employed in drawing the baseline from
which the breadth of the territorial sea is measured.
2. The drawing of such baselines must not depart to any
appreciable extent from the general direction of the coast, and
the sea areas lying within the lines must be sufficiently
closely linked to the land domain to be subject to the regime of
internal waters.
/2/ Article 7 provides in pertinent part:
2. (A) bay is a well-marked indentation whose penetration is
in such proportion to the width of its mouth as to contain
landlocked waters and constitute more than a mere curvature of
the coast. * * *
3. For the purpose of measurement, the area of an indentation
is that lying between the low-water mark around the shore of the
indentation and a line joining the low-water marks of its
natural entrance points. * * *
/3/ The Special Master refers to 1 A. Shalowitz, Shore and Sea
Boundaries 203-236 (1962) on the limitations on straight baseline use
(Report at 12-13). That expert does not suggest, in the quoted
material or elsewhere, that such baselines are used to define the
coast of the United States. See, e.g., 1 A. Shalowitz, supra, at 206.
In addition, the Special Master assumes that the federal
interagency Baseline Committee was applying Article 4 criteria when it
drew the Tybee Island-Hilton Head line (Report at 13), although he
notes that "the Baseline Committee gave no particular emphasis to the
configuration of the coast in establishing" the line (id. at 14). But
an Article 7 bay closing line, unlike an Article 4 line, is not
constrained by the general direction of the natural coast line in the
vicinity. We have reviewed the minutes of the Baseline Committee and,
as would be expected, find no indication that the Tybee Island to
Hilton Head line was constructed as an Article 4 straight baseline --
a construction which would, in any case, have been beyond the
authority of the Committee, since the Committee is authorized only to
apply United States policy in its coast line construction, not to
adopt a wholly new system of delimitation. It is, accordingly, clear
that the Tybee Island-Hilton Head line is an Article 7 bay closing
line.